Major Dissent To International Law


A fortnight ago, I wrote about the deep fractures emerging in international criminal law. In the last week, those fractures have cracked open slightly more. On Thursday, it was revealed in the Danish media that a judge at the International Criminal Tribunal for the former Yugoslavia (ICTY) had written a letter to 56 of his colleagues in Denmark, in which he made allegations of politicisation of the ICTY.

Judge Frederick Harhoff’s five-page letter (pdf) is a blistering attack on current processes at the tribunal. It raises several concerns about present conditions at the ICTY, particularly the lack of judicial cohesion; possibly rushed judgments; the uncertain and evolving nature of the law and process; and a lack of agreement about the aims of the tribunal, particularly with regards to acquittals.

Judge Harhoff criticises what he sees as a change in direction in the law of holding commanders responsible for crimes committed by others. Perhaps more controversially, he questions why this change has occurred, asking “Have any American or Israeli officials ever exerted pressure on the American presiding judge … to ensure a change of direction?” Judge Harhoff’s criticisms are particularly leveled at Theodor Meron, the President of the Tribunal and Judge of the ICTY Appeals Chamber.

In particular, Harhoff focuses on the recent appeals judgments in the cases of Gotovina and Peresić. In both cases, the accused’s convictions were overturned on appeal, and the accused were acquitted. Harhoff accuses “tenacious pressure” by Meron on his colleagues in these cases, and suggests he was “determined to achieve an acquittal”. He also accuses Meron of placing pressure on the Trial Chamber in the Stanisić and Simatović case to deliver verdict by a particular date, and calls the judgment (where the accused were acquitted) “a rush job”.

Judge Harhoff concludes that:

“The latest judgments here have brought me before a deep professional and moral dilemma, not previously faced. The worst of it is the suspicion that some of my colleagues have been behind a short-sighted political pressure that completely changes the premises of my work in my service to wisdom and the law.”

Make no mistake, these are strong words coming from an international judge. Putting aside for one moment whether or not Judge Harhoff is correct in his legal approach, and whether or not the allegations he raises are true, the very fact that Harhoff has written these words is significant.

The day after the Harhoff letter was made public, The New York Times (NYT) revealed relatively widespread discomfort throughout the ICTY staff regarding the present state of affairs. According to the NYT, sources at the ICTY have spoken about a “mini-rebellion” against Judge Meron, and a source stated that “about half the judges are feeling very uncomfortable” with present conditions.

The Harhoff letter and the revelations from the NYT therefore raise several questions about the state of the ICTY. First, this letter reveals another significant blow to judicial collegiality at the ICTY. As I wrote a fortnight ago, there appears to be an increasing division within the judges in international criminal institutions, including at the ICTY. In addition to an apparently increased number of dissents, several have been blisteringly phrased – again, not a common occurrence (until recently) for typically mild-mannered judges.

Language such as “contradicts any sense of justice”, “completely unjustified”, and “a dark place in international law” shows the vehemence of the dissents. Harhoff’s letter is more evidence of the division between judges. While healthy judicial discussion is important, the apparent level of conflict between the judges is not constructive. It rather suggests a strong divergence in judicial opinion as to the law, the standards of evidence, and the aims of trials and the tribunal. This is before any allegations of politicisation are examined.

Secondly, Harhoff’s accusations about the speed of the Stanisić and Simatović verdict should be examined closely. The NYT reported that the ICTY source believed Meron has been “putting on a lot of pressure and imposing internal deadlines that do not exist.” Moreover, “several senior court officials […] said judges had been perturbed by unacceptable pressures from Judge Meron to deliver judgments before they were ready”.

The Stanisić and Simatović case was delivered just four months after the completion of closing arguments – a very short time-frame for the ICTY. This must also be viewed against the background of the current climate at the tribunal: an institution nearing the end of its mandate and subject to a “Completion Strategy”. That completion has recently been further reinforced, with the “Mechanism for International Tribunals” to take carriage of all remaining cases from 1 July 2013, and the ICTY phased out. The encouragement to finalise cases speedily cannot be denied. Staff downsizing as part of this process has taken its toll too: there has been an imperative to conduct work quickly, but with reduced staff numbers. This was always bound to cause friction.

It is worth noting that the Stanisic and Simatovic judgment was delivered on the last day a trial judgment could have (theoretically) been delivered in a time that would allow the ICTY, rather than the “Mechanism”, to have carriage of the appeal. This may or may not have factored in the scheduling of the judgment, but the confluence between this and the allegations by Harhoff and by senior ICTY staff, is notable. If true, as Harhoff has suggested, that Judge Picard was only given four days to write her dissent, the system of international law may have been deprived a dissent that may have been better reasoned and more beneficial to the future of this young system of law.

The third main issue raised by the Harhoff letter is the lack of certainty and agreement around the law to be applied. Some have argued that the recent cases in fact demonstrate an attempt by judges to “maintain judicial consistency” and the right to a fair trial. Some others argue that the changes in fact represent a re-correction in the direction of the law, so that it is more aligned with its traditional aim of a balance between protecting civilians and military necessity. Nonetheless, the fact that so many commentators and critics have argued against this perceived “change” in the law demonstrates at least a lack of understanding about the state of law; that Harhoff himself views this as a problematic legal change, demonstrates a lack of legal cohesion on this point.

Finally, the letter also raises questions about the place of acquittals in international criminal trials. Some have interpreted Harhoff’s attack on three acquittals as an attack on the possibility of acquittals, and even as a sign that there remains a bias towards convictions. It is again worth remembering that acquittals, where they are the result of a fair trial with evidence properly tested and law appropriately applied, are in fact a sign of a legal system working as it should. The ICTY was never established to deliver show trials; acquittals are not of themselves to be feared. However, the continued discussion around whether the system is tilted towards convictions shows that this is not yet settled.

The Haroff letter alone ultimately does not provide any more than rumour and supposition. However, these are serious allegations that should not be dismissed out of hand. That a judge at the tribunal is prepared to write such things is significant in itself. The additional revelations that other judges and staff are also concerned about the leadership and direction of the tribunal add to this. This letter has raised significant issues – about judicial cohesion, external pressures of timing and resources, legal certainty, and ultimate aim of the courts regarding convictions or acquittals. Without a systematic and honest appraisal of the international legal system and the difficulties it is facing, the current fractures may deepen even more.

Dr. Sophie Rigney is a Senior Research Fellow at Melbourne Law School, and is co-appointed as a Fellow at the University of London. She was previously a defence lawyer at the International Criminal Tribunal for the Former Yugoslavia in The Hague. Dr Rigney researches international law, Indigenous international law, and post-conflict justice.